A Hater’s Guide to Golan v. Holder

Photo by dbkingAt first I hated the idea of restoring copyrights in public domain works.  This week the US Supreme Court heard arguments in Golan v. Holder taking me back to when Section 514 was first implemented. I hated the idea even though I am pro-copyright.  I hated the idea despite my feeling that on some level it righted wrongs suffered by authors whose copyrights were forfeited due to an inadvertent failure to comply with a US copyright “formality”.  A faulty copyright notice or failure to make a certain filing in the US  Copyright Office could propel the foreign author’s work into theUS public domain, although no such formality existed in the author’s home country.  I hated restoration because it undermined confidence in the permanence of the public domain, something I firmly believed was and should remain “black letter law.”   I guess I was a hater…

When the US  Copyright Act was first amended to restore copyright for certain foreign works that had fallen into the public domain in the United States (under NAFTA for works like Mexican movies and later under Section 514 of Uruguay Round Agreements Act), I was editor-in-chief of Public Domain Report, a publication that reported monthly on works entering the public domain in the United States.  It may sound strange, but even though the Public Domain Report was forced out of business when the Sonny Bono Term Extension Act became law resulting in a 20-year moratorium on new entries into the US public domain, I totally supported term extension.  It made sense to harmonize US and EU law in order to gain more favorable treatment for US copyright holders. Before harmonization, countries that granted a longer term of protection to their citizens granted a shorter term of protection to US copyright owners due to the shorter term of copyright under US copyright law.

Term extension opponents could not understand why I supported term extension, a law that would effectively destroy my publication.   But I had no choice really, because it was clear to me that US copyright creators and owners would benefit from term extension, and the majority of my clients and friends fall into one or both of those categories.

The rationale for restoration of foreign works is arguably more compelling than the rationale for copyright term extension — in the case of restoration, the law was crafted to bring the US into compliance with international treaties, notably the Berne Convention, that US copyright owners rely on for  global protection of their intellectual property . Nevertheless, I hated restoration on a visceral level because it meant that a work we reported as public domain one year might no longer be in the public domain the next year. It meant that those who invested in developing new works adapted from the public domain work could no longer rely on the permanence of the public domain. Worse, the restoration laws  benefitted only foreign works in the US public domain for failure to comply with a draconian formality under the US Copyright Act — US works in the public domain  for  the same  reasons were not revivable.

That was a few years ago.  I have come to terms with copyright restoration as the new reality, yet another layer to the Rubik’s Cube puzzle one must solve when determining copyright status of works thought to be in the public domain.  Restoration took some getting used to,  but I came to see it as  challenging but necessary  stretch on the road  to better international copyright  protection.    I am okay with it now.  I don’t hate restoration so long as it is  limited to the foreign works covered under the existing law.   Really.

Will the Court send the restored works back to the public domain?  Despite the 52 amicus briefs filed in support of the Petitioner in Golan v. Holder, and irrespective of my feelings about the value of public domain “permanence”, I do not expect the Supreme Court to find that Section 514 violates the First Amendment rights of US citizens to use public domain works.  Just as term extension was upheld by the Court in its 2003 decision Eldred v. Ashcroft, I expect the Court to uphold the Constitutionality of Section 514 as a reasonable exercise of congressional power in addressing the important goal of compliance with international treaty obligations.  I  hope my prediction is right,  and that restored works are not unrestored by the Court.

I would really hate that…